Image Source: Pexels
A prisoner, just like a freeman, is entitled to legal representation among other constitutional and administrative protections although they do not have full constitutional rights. But, What Type Of Legal Representation Is Best For Prisoners? Lawyers and public defenders play a major role in prisoner litigation and legal defenses. They investigate the necessary information, help in the commutation of sentences, and provide alternative modes of representing disputes.
As of 2016, it was recorded that about 2.2 million Americans have been incarcerated at one point or the other. This means that for every 100,000 people in the US, there are 655 inmates. This has resulted in prison congestion and also generated a lot of revenue for the government.
On one hand, the solution for some people is to build more prisons for criminals. On the other hand, the solution for other people is to reduce mass incarceration especially for non-violent offenders, those who are wrongfully convicted, and those who are vulnerable and at risk for contracting COVID-19. Some issues are debatable hot topics; the type of legal representation that a prisoner has or can afford, and the amount of money spent surrounding incarceration.
A total of about $18 billion was said to be generated annually as tax payments from prison, parole, and probation operations. Bail bond fees, prison phone fees, and court costs also contributed to about $100 billion in revenue. Sadly, even though several people are serving their sentences in prison, there are still some inmates who are awaiting trial.
For a prisoner to enjoy legal representation, the type of representation needs to be spelled out. The roles of lawyers, public defenders, and pro se representation need to be spelled out as well before any court or hearing proceedings take place.
Image Source: Pexels
Who Is A Lawyer And What Do They Do?
A lawyer is a person trained and licensed to practice law by a relevant enabling body. The lawyer has a duty, by this training, to uphold the law and protect the rights of clients. A lawyer owes a duty of skill, care, and transparency to clients when handling cases or representing them on matters concerning the law. Some lawyers have been in the hot seat of jokes for poor representation and outcomes while others get rave reviews relating to brilliant strategies at law for dismissals and acquittals or convictions.
The primary duty of a lawyer is to provide legal advice and counsel, research facts of each case, and the relevant laws, as well as gather evidence where needed. A lawyer is also expected to draft legal documents with regard to contracts, real estate transactions, wills, and other areas of law. Other than the above, a lawyer is also expected to mediate disputes and inform their clients about their rights and obligations based on the area of law in question.
Who Is A Public Defender And What Do They Do?
A public defender is a fully licensed lawyer who is tasked to represent indigent defendants in criminal cases. Not being able to afford a lawyer should not be a reason why you should not get a fair hearing. A fair hearing is a constitutional right and to provide for this and the government can make provisions for defendants to have public defenders.
While public defenders are paid by the government, they are supposed to represent you. In prison litigation, a public defender should help prisoners in fact-finding and evidence collection that can vindicate them. The public defender also has a duty of helping to commute the sentence of prisoners where possible.
The role that public defenders play can get a bad rap as some people believe that they are overworked with voluminous cases and not as effective as they can be in winning cases when representing defendants. It is imperative for defendants with public defenders to be armed with knowledge and facts about the details and possible outcomes of the type of case they have as well as the effective legal plans and strategies and track record of the public defender who is assigned to them. Asking questions may be good in gathering information about one’s case and public defender.
Pro Se Representation
"Pro se" is a Latin term that means "for oneself." It could also be interpreted to mean "on behalf of oneself." It simply refers to the legal practice of self-representation in a pending legal proceeding before a court. This type of representation, though constitutionally provided for, is not encouraged by the courts.
This is because as much as you can represent yourself, ignorance of the law is no excuse – for both sides. However, keep in mind that your ignorance can cost you your freedom, loss of good reputation, and money to a potentially greater level than those whose ignorance of the law you are subjected to. As a prisoner, one of the many legal options available to you is pro se representation. This should, however, be a last resort as it is at the prisoner's peril in some cases.
Image Source: Pexels
The History of Lawyers, Public Defenders, and Pro Se
The history of lawyers, public defenders, and pro se representation goes as far back as time immemorial. Every individual is supposed to have the U.S. constitutional presumption of innocence for offenses they are alleged to have committed until otherwise proven guilty. To prove the guilt or innocence of an accused person, the cardinal legal principle of a fair hearing comes to play. Lawyers have always been tasked to represent their clients by investigating evidence that presents itself. Make no mistake about it, unfortunately, miscarriages of justice do occur and there is more work to be done in the criminal justice system for our society to continue to positively evolve and prevent these occurrences in the future.
As human society evolved after the inception of legal representation, there came the need to protect the less privileged in society and ensure that they have access to constitutional representation. It is on this premise that the US government made provisions for public defenders. A public defender is employed and paid by the government to represent an indigent defendant.
Pro se or self-representation on the other hand has its roots in the U.S. Constitution. It came about because of the persistence of defendants to represent themselves in a matter. Strong convictions about an issue, inability to find what they deem good legal counsel and economics have all been reasons why defendants - sometimes prisoners, choose to represent themselves.
Areas of Law Involving Prisoners
Going to jail or prison means that you will have to let go of some of your rights. It does not, however, mean you do not have any rights, because you do. As a prisoner, it is important to know where any of your rights are violated so that you can institute a civil or criminal suit through your legal representation to seek remedies. Some of the rights you are entitled to while in prison include, but are not limited to:
· Freedom from cruel and unusual punishments
· Freedom from sexual harassment or sex crimes
· Right to complain about prison conditions, environment, and full access to the courts
· Right medical and mental health care
· First Amendment rights
· Freedom against discrimination
When there is a violation of any of the above, lawyers and public defenders can bring a lawsuit on behalf of their clients for remedies.
Areas where lawyers or public defenders can represent a prisoner include:
· Hearings at the State Parole Authority
· Life sentence determinations and commutation
· Segregation appeals; and
· Visiting magistrate hearings
Image Source: Unsplash
Why Legal Representation Is Important For Prisoners
While many prisoners according to the U.S. Bureau of prisons either neglect legal representation for various reasons, others resort to pro se representation. Either way, ineffective assistance of counsel or lack of it can be very detrimental to their case. Ineffective assistance of counsel is when a trial lawyer’s performance fell below an “objective standard of reasonableness” and a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, 466 U.S. 668 (1984). Cases with good legal representation by a lawyer have yielded more positive outcomes at hearings or settlements than those without them. Some people and prisoners may feel like politics and money unfairly play roles in the proceedings and outcome of cases.
Alternatives to Litigation for Prisoners
For prisoners, lawyers and public defenders are not limited to litigation alone. They can also consider other alternatives to litigation that can help prisoners. These alternatives include hearings, plea bargains, and settlements depending on whether it’s a civil or criminal case. Where the case is such that the aggrieved party can be reached, a lawyer or public defender can resort to mediation or arbitration to settle civil cases. Through effective counsel representation, settlements and hearings can do a lot of good to the case and reduce the time and cost of prisoner litigation. This because claims made by prisoners many times span over a long period.
The idea of the prison system is to reform prisoners and ensure they are better men and women if or when they are integrated back into society. Being a prisoner should not be a barrier to getting good legal representation. What matters is finding the best type of legal representation for the prisoner and maximizing it to the fullest to get the best possible outcome. Therefore, lawyers and public defenders can be crucial in working to make this happen.
Disclaimer: The information in this article is not intended to be legal advice.
Santo, Alysia (2015, February 18). Suing from Prison
It’s not just about bad haircuts and peanut butter. Retrieved from https://www.themarshallproject.org/2015/02/18/suing-from-prison
Prison Legal News (2015, September 28). Trends in Prisoner
Litigation, as the PLRA Enters Adulthood. Retrieved from https://www.prisonlegalnews.org/news/2015/sep/28/trends-prisoner-litigation-plra-enters-adulthood/
Nolo (2020). The Public Defender in a Criminal Case: Public
defenders are paid by the government, but they work for you. Retrieved from https://www.nolo.com/legal-encyclopedia/the-public-defender.html
Sokanu (2020). What does a lawyer do? Retrieved from
For more information about legal representation and the criminal justice system, click on the link below:
(Disclaimer: Affiliate Advertising. As an Amazon Associate, we earn from qualifying purchases.)
Beginning to Winning: How to Fight Your Case and Succeed in the Criminal Justice System Paperback – May 12, 2020 by Robert F. Gruler II